Interpreting Human Rights: Social Science Perspectives
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Another example emerges in Canadian legislation: the Official Development Accountability Act offers a definition of official development assistance and accountability, and contains a human rights clause stating that operations must be consistent with international human rights standards. The centrality of human rights to EU development cooperation draws explicitly on legal commitments that are both internal and external to the EU itself.
The policies flow from the legal obligations of its Member States, as well as from EU treaty provisions which recognize human rights as common values underpinning EU partnership and dialogue with third countries. The policies of the European Bank for Reconstruction and Development EBRD and the New Partnership for Africa's Development NEPAD illustrate the relevance of legal frameworks to link human rights and development activities through obligations under international law treaties in the former, and through connecting development and human rights institutions and processes in the latter.
The EBRD policy also specifies that its country and sector strategies should summarize the principal environmental, human rights, gender equality and other social issues in the relevant country or sector, and set out the EBRD's proposals for taking these issues into account in its operations, where appropriate paragraph In Africa, the NEPAD Framework Document contains several references to human rights, as a foundation, objective and responsibility of the mechanism.
In general terms, the review of development policy reveals an uneven engagement with human rights and a lack of express reference to human rights obligations and the legal dimensions of human rights.
Items – Insights from the Social Sciences
First, the discussion of divergence above reveals that in most development institutions or agencies human rights are not characterized in legal or obligatory terms. The lack of emphasis on the legal dimension of human rights in development may be contrasted with the prominence of international treaty obligations pertaining to well integrated issues like trade and environment which are explicitly provided for in the policies and guidance of several development institutions.
Second, policies that recognize the interconnection of development policy and international law tend to take a more holistic view of the participation of states in various fora, and the interlinked nature of their duties in different international contexts. Policies that evidence a separation between human rights and development tend to neglect the legal dimension of the former and states may content to keep their treaty obligations under human rights instruments separate from the processes and policies that determine their contributions to, or allocations from, development expenditures.
Third, even policies that bridge human rights and development are typically stronger at the level of discourse than they are in respect of assessment, monitoring and evaluation. This may offer a partial explanation for the lack of emphasis on the legal dimension of human rights: like other international treaties, human rights law brings with it a full range of rules, assessments and indicators, forcing questions of concrete application, monitoring and even enforcement.
Human rights law is founded on a set of stable, positive law commitments into which states have voluntarily entered, binding them to put in place domestic measures and legislation compatible with their treaty obligations. Human rights treaty obligations have the benefit of being bounded and voluntarily acceded to, with the specific parameters of states' obligations carefully negotiated, and circumscribed through reservation and derogation.
This approach avails of the natural limits of the treaty undertakings, thereby securing a clarity and legitimacy that approaches based on principles and values or even general principles of international law may not avail of as easily.
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Treaty-based obligations underpin the rights enshrined in the nine core human rights treaties concluded under the auspices of the United Nations, 45 and the conventions concluded under the auspices of the ILO 46 , and regional organizations like the Council of Europe 47 and the Organisation of American States OAS. Like these other types of multilateral treaties, human rights treaties enjoy high levels of ratification Alston and Simma, , but distinguish themselves in predating many and having long established processes and monitoring bodies, as well as a growing body of practical tools and indicators.
Human Rights Council and its Universal Periodic Review , UN human rights treaty monitoring bodies, 50 as well as individual communications mechanisms, complaint procedures Tomuschat, : — and special procedures, 51 all of which continue to develop a substantial body of expert knowledge. Despite the divisive politicization that plagues many human rights processes, the specific contribution of approaches that integrate human rights in development is that they make good practice and principles a matter of obligation. Without offering a legal base to that obligation, it is not clear whether human rights can deliver on the promise of this distinct contribution since the source of human rights or the duties remains unclear.
Without a legal foundation, human rights commitments, values and principles are potentially subject to variance, and to some extent remain subjective. The fact that human rights have not been more systematically integrated into development demands an examination of the approaches that have been used, in particular non-legal, social science and principled-based approaches.
A legal approach offers a clear rationale for the relevance of human rights to development, which is simply that it binds as a matter of law and is therefore obligatory. It offers a concrete baseline for ensuring the respect of human rights and preventing any lowering of the standard of human rights enjoyment by development activities, which can also be conceived of as a form of due diligence, to protect against political and other forms of risk associated with human rights harms. However, without anchorage in specific, binding legal obligations such an application would appear difficult to undertake and a normative assessment improbably upheld.
Development policies and activities tend to be evaluated by individual institutions or agencies relative to internal accountability mechanisms or systems of evaluation which lack a normative element grounded in separate legal commitments. There are few external forms of assessments or evaluation, 53 and even fewer openly normative assessments of development. A human rights legal standard potentially offers both, and does so based on a shared value system inculcated in international treaties to which most of the world's countries are party, and to which they are bound under international law.
The incorporation of human rights legal standards mitigates human rights harms by providing a binding legal standard against which development policies, processes and outcomes can be assessed to 1 determine risk to human rights and whether development activities are likely to, or in fact, result in harm; 2 ensure that development activities in fact promote human rights or create the conditions for the realization of human rights World Bank, : 1 ; 3 prevent and redress unintended negative impacts on human rights in development processes and outcomes; 4 better understand the claim that development advances human rights; and 5 foster a deeper understanding of the relationship between the two fields.
Policy coherence fosters the sustainability of policies by preventing duplication and avoiding contradiction through promoting coherence across related subject matters and assessing the impacts of diverse areas of international policy on one another. Policy coherence is also indispensable to the realization of human rights. In practice, policy coherence supports a focus on existing obligations, and applies to the institutional structures within which states, as traditional duty-bearers, operate so that the actions of states in various institutional structures and processes do not undermine human rights enjoyment.
This may call for coherence across policies governing different issues, as well as coordination of a state's positions and participation in a number of international organizations and processes.
International Studies in Human Rights
Human rights treaties respond to the challenge of policy coherence by providing an established legal platform around which to organize that coherence: The fact that both donors and partner countries have ratified the international human rights treaties provides a uniquely valuable reference point for harmonisation efforts. A mutually agreed, universal normative framework already exists, supported not only by political commitment, but also by the force of legal obligation.
As well, at the operational level, there is growing convergence on the integration of human rights in development. In practical terms the pursuit of such coherence through reliance on human rights treaties would require legal assessments to be undertaken to gain a comprehensive view of the legal obligations potentially in play in a given context. It might also require the development of a strategic view of the roles and responsibilities of international actors in respect of these obligations, including any potential applications to themselves, and might call for some process of resolution in the event of conflict or inconsistencies, including possibly establishing a hierarchy of legal obligations.
Were such policy coherence to be pursued with respect to human rights, some basic cooperation between the key international actors would be necessary, and the mutual informing of guiding strategies indispensable. Another significant consequence of the separation of these frameworks is the absence of specific human rights accountability in development policy and activities Bradlow, ; Clark, ; Darrow, ; Skogly, It is argued that accountability for human rights cannot properly be upheld because human rights obligations are not factored into development policies, such that states—as donors or clients—can pursue development activities without any systematic assessments of their consequences in human rights terms and without there being any effective legal recourse where those consequences are negative.
The absence of legal duties in development policy frameworks undermines the possibility of the key contribution of human rights — accountability — being upheld in the context of development with respect to both process and outcome Twomey, This is so despite the increased prominence of accountability in the content and emphasis of development or aid policies discussed above. Second, while accountability frameworks such as those governing the Paris Declaration 63 fulfill essential functions, and are not a priori inconsistent with human rights accountability, their parallel existence, without any corresponding recognition of human rights obligations or impacts presents a risk to the latter.
The Paris Declaration constitutes a mechanism through which donors and partners are held mutually accountable: these same countries are accountable for human rights that are directly relevant to, and potentially impacted by, harmonization efforts. Third, the accountability propounded through development frameworks is not equivalent to the legal accountability upheld through human rights law. Rather, it is an accountability centered on principles, political commitments and policy frameworks rather than specific, binding legal obligations under public international law.
One may argue that the human rights accountability lacuna is compounded rather than mitigated by the existence of various forms of non-legal accountability mechanisms in development contexts. These are not a substitute for human rights accountability, and without recognizing and complementing it, they risk undermining it.
That complementarity could be promoted if the processes connected with human rights treaties could be connected in some way to development processes, and if human rights treaty obligations could become a part of existing accountability mechanisms, whether through policy frameworks or complaints mechanisms. Human rights law norms could deepen and ground existing accountability mechanisms and help fill some of the perceived accountability gaps in both horizontal state to state and vertical state to citizen relationships.
This article has sought to underscore some obvious but nevertheless overlooked strengths of the human rights law framework in the context of development. While it does not argue for human rights conditionalities it aims to highlight in a preliminary way, some of the opportunities presented by the international human rights framework as a shared, stable and clear structure of international treaties with substantial and, in some cases near universal ratification.
These offer a legal and normative baseline founded on the voluntarily undertaken commitments of states, which bind them under public international law and which may support them in the pursuit of sustainable development. In summary, for development practitioners aiming to promote the integration of human rights more systematically into development, this article proposes that the international law framework offers one way to do this by providing a binding and legitimate starting point to establish the connections, and a body of rules, principles, indicators and processes to assist the integration of human rights in development.
Recognition of the treaty base of international human rights in the context of development refocuses attention on the fact that 1 human rights are not voluntary or just rhetorical, they are the subject of legally binding commitments; 2 human rights may add value and fundamentally change how development is pursued, what it pursues and what it can achieve; 3 realizing human rights may be different from undertaking good development practice — the former is done out of legal obligation, the latter might not be; 4 human rights are intrinsically valuable and therefore worth protecting in development; 5 human rights can play an instrumental role in fostering sustainable development through adverting risk and focusing on ways in which development can support the realization of human rights.
It is submitted that the failure to recognize the legal dimensions of human rights may indeed be connected with the wider failure to recognize the distinct value of human rights for development. This article represents the author's personal views and should not be attributed to the institution for which she works. Responsibility for errors or omissions remains my own. This work is dedicated to Kristina Celich. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide.
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Development Frameworks and the Incorporation of Human Rights. World Bank. Oxford Academic. Google Scholar.
Cite Citation. Permissions Icon Permissions. Abstract Human rights and development continue to reflect a separate evolution. This article reflects the personal views of the author and should not be attributed to the World Bank. For an analogous discussion linking trade and labor standards, see Barry and Reddy : This is the typology used in McInerney-Lankford : Participation and consultation are central to the policies and practice of many development agencies; see e.
For a comprehensive discussion of international law provisions on equality and protection against discrimination, see McKean and Fredman From a similar viewpoint, Gideon Sjoberg and colleagues argue that a sociological focus on the moral order, as a social reality, implies that moral inquiry in sociology is justified Sjoberg et al. While sociologists typically have trouble approaching universal concepts, the authors argue, applying such universal principles to empirical situations would be illuminating.
From this review it is clear that sociologists of human rights have criticized the classical tradition of sociology because of its presumed impotence to study rights. As a more specific component of this critique, a focus on the legal institutionalization of human rights is seen as imposing an unwarranted constraint on the sociological study of human rights. We will argue that this dual critique is misplaced and suggest that sociology, in general, and the sociology of law, in particular, are the victims of a misguided criticisms by sociologists of human rights.
Our arguments relate to both the sociology of law as it has emanated from the classics as well as to the broader role sociology should play, both intellectually as well as socially. Human Rights: Lessons from the Sociology of Law. The first author of this paper has recently reviewed the history and systematics of the sociology of law in the form of a book-length study Deflem, Although this work does not offer a complete review of all developments in this sociological specialty, the study was comprehensively aimed at laying bare the intellectual and institutional contours of the sociological study of law.
Whatever the merits of the work, it is striking to observe that there are only three mentions of human rights in the book. Additionally telling is the fact that the term rights was mentioned well over times. A brief discussion of these usages of human rights and rights in the sociology of law may reveal some essential characteristics of both the realizations and limitations of the development of a sociology of human rights from within the specialty of the sociology of law.